The stories, by now, are legion, and they all have one theme: Immigrants do not have the same due process rights as the rest of us.
Alejandro Rodriguez, named plaintiff in this week’s Supreme Court decision Jennings v. Rodriguez, spent over three years in detention while his immigration appeal proceeded (PDF). This week, the court held that under the governing statute, he was not entitled to a bail hearing.
Immigration activist Ravi Ragbir was unexpectedly detained during a routine annual check-in with ICE on Jan. 11, and flown to Miami for immediate deportation without a process or hearing. A federal judge ruled on Jan. 29 that he had the right to “say goodbye.” His new deportation date is March 15.
In Kansas, Syed Ahmed Jamal, a chemistry teacher and father of three who has lived in the United States for over 30 years, was suddenly arrested on Jan. 24, shipped to El Paso, Texas, and was about to be put on a flight to Bangladesh when a judge granted him a temporary stay of removal. His case is now in court, but his fate may depend on public pressure and a Change.org petition.
Daniela Vargas, a 22-year-old undocumented “Dreamer,” was arrested and threatened with deportation after she dared to speak to the media last year. Seventeen-year-old Maryori Urbina-Contreras fled violence in Honduras to live with her mother outside Chicago, but will be deported next week if her asylum claim is not granted. She’s been litigating that claim since 2015.
How is any of this possible? Well, long before the Trump administration’s crackdown, American law has treated immigrants, legal and illegal, as less than equal. There are three ways this inequality plays out.
First, in no other area of law are law enforcement officers granted so much discretion. The way our immigration laws are written, ICE and the Department of Justice can choose at random who stays and who goes.
That’s why DACA, the Deferred Action for Childhood Arrivals program, is such an easy program to repeal; it’s basically nothing more than an internal memo, left over from the Obama administration.
It’s also why Jamal was targeted. Until Jan. 25, 2017, the government said that it would not hunt down people with strong familial and communal ties—people like Syed Ahmed Jamal. Then, Donald Trump signed an executive order, and poof!, that policy was gone. No judicial review, no administrative process. Because the executive branch is given so much discretion in immigration law enforcement, it can change its mind willy-nilly.
Or, as it has done, in a way that systematically targets Muslims and Latinos.
That wide discretion also gives an unlimited, inquisitorial authority to ICE and immigration courts. What they say goes, for good or ill. Earlier this month, for example, ICE moved to deport Jesus Berrones, an undocumented Arizona man whose 5-year-old son is battling leukemia. After media exposure—Berrones took shelter in a church—ICE changed its mind. “In an exercise of discretion, ICE has granted Jesus Armando Berrones-Balderas a one-year stay of removal on humanitarian grounds,” a spokesman said.
That story has a happy ending (for now), but consider how this family’s lives hang in the balance, dependent solely on the discretion of law enforcement.
Not so lucky is Ricardo Querales, an HIV-positive gay refugee who was granted asylum in 2004 but arrested for a minor drug offense in 2009. Querales was told last month—again, at a routine check-in and with no advance warning—that he was being deported to Venezuela. Due to the economic crisis in that country, HIV medications are not widely available, which means his deportation is practically a death sentence.
There are hundreds of stories like these, of men and women—almost always Latino or Muslim—bouncing around in an administrative roulette wheel, with their lives at stake.
Second, the judicial processes that immigrants face—again, whether their status is legal, illegal, or uncertain—take place outside the normal judicial system. In the Immigration and Nationality Act of 1965, Congress severely limited judicial review of immigration decisions and placed all but final determinations in the hands of special immigration courts, which themselves are under the authority of the Department of Justice, not the judiciary. It’s an entirely different system, without many of the features and protections most Americans take for granted.
And those courts are a mess. In New York, people wait an average of two years for their claims to be heard. During that time, they may be detained (without bail or bail hearing) under harsh conditions; Justice Breyer’s dissent in Jennings cited a 2017 Department of Homeland Security document “reporting instances of invasive procedures, substandard care, and mistreatment, e.g., indiscriminate strip searches, long waits for medical care and hygiene products,” and so on.
As bad as mass incarceration and private prisons are, this Kafkaesque system is even worse. Research by one American University professor found that administrative detention is routinely inhumane. In the space of just a few months, airport ICE personnel handcuffed a 5-year-old child and separated him from his parents, detained one woman for 20 hours without food, and handcuffed a 65-year-old woman traveling from Qatar to visit her son stationed at Fort Bragg, holding her for 33 hours.
Moreover, these are people who often win once their cases are finally heard. They are asylum seekers who face violence in their countries of origin, or people who have lived in the United States for decades, or people whose debts to society have already been paid.
In other words, they are innocent people detained for years in an administrative regime with extremely limited judicial oversight.
Indeed, Justices Thomas and Gorsuch wrote this week that the court should not have heard Jennings v. Rodriguez in the first place, because Rodriguez has no right to appeal to a regular court until his deportation order is finalized (PDF). That would make his case, which is about whether he can be held for years without a hearing, impossible to review. “The Constitution does not guarantee litigants the most effective means of judicial review for every type of claim they want to raise,” Justice Thomas wrote.
Finally, the entire conceptual edifice of U.S. immigration law regards “aliens” as not entitled to the same rights as citizens. Generally speaking, the Constitution applies to “all persons within the territory of the United States,” not just citizens. The court has ruled in 1896, 1973, 1982, and 2001 that that specifically includes those whose residence here is “unlawful, involuntary or transitory.”
But in practice, the extent of those rights is often limited.
Last month, for example, the 9th Circuit Court of Appeals—which Donald Trump has singled out for opprobrium—ruled that children illegally brought to the United States by their parents have no right to a court-appointed lawyer, a right all common criminals enjoy.
The Trump administration wants to go even further. In Jennings, the Trump administration argued that, legally speaking, aliens and asylum seekers never actually enter U.S. territory until they’re approved to enter. In a novel legal fiction that defies consensual reality, the administration is arguing that immigrants are not really here.
“This last-mentioned statement is, of course, false,” wrote Justice Breyer in dissent, and neither he nor the court agreed with it. But it does signal how this administration regards undocumented people (or “illegals” or “aliens” or whatever): as not entitled to any of the Constitution’s protections whatsoever, due process among them.
Even though the Supreme Court has repeatedly rejected this view, it is a commonplace opinion on the right: Rush Limbaugh, Laura Ingraham, and Sean Hannity have all stated that “illegals” have no rights at all. Now, in part, it is Trump administration policy.
Which means this fight is only going to intensify. Jennings was widely read as striking down a detained immigrant’s right to a bail hearing, but that’s not quite true. Actually, the (conservative) majority simply held that the statute doesn’t provide such a hearing. The constitution might—and that, and dozens of contested rights like it, will surely be litigated in cases to come.
In the meantime, consider the lives of Rodriguez, Ragbir, Urbina-Contreras, Querales, Jamal, and thousands of people like them. While courts debate how many rights they’re allowed to enjoy, they are languishing in administrative detention or uncertain circumstances while a separate and unequal system of justice determines their fates.
This is actually happening. In this country, there is only due process for some.